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Kathy Griffin’s Offense and Revisiting Free Speech Rulings

By Rep. Julio Gonzalez, M.D., J.D.

Kathy Griffin’s grotesque and vile defilement of the President of the United States is the most shocking and offensive display of hatred towards a public figure I have ever seen delivered by an American citizen. I have not yet seen or heard anyone defend her actions as being appropriate, or even valid. But recurrently, the left’s answer to her disgusting video is that they eagerly defend her right to have done it because the First Amendment protects her rancid form of expression.

Well. . . guess what?. . . it shouldn’t, as her expressions do not carry with them a sufficient sense of civility or decency to merit the protections of a provision as austere as the First Amendment to the Constitution of the United States.

Griffin’s “political expression” of stoically holding a very accurate likeness of the severed head of the President of the United States for others to marvel is not political speech.

There is no logic in it. It does not advocate for a particular policy, or a political philosophy. There isn’t even a political opinion that is expressed. The “bold statement” that her “art” makes, at best, is a raw hatred for this President and the pleasure that she would take at his decapitation. At worst, it is an invitation for similarly sick people to take up arms against our nation’s leader and bring harm to him in a manner akin to those employed by our present enemies.

In short, there isn’t much veiling of the threat to the life of the President of the United States contained in the images fabricated and published by Griffin.

But Griffin, like her fellow leftist haters, will misguidedly shroud herself with the First Amendment; defiling it in no less a fashion than she did the President himself. How can she do that? How is it that a whole group of people can make such a deranged argument about the protections afforded to them by the Constitution?

Free speech precedents

If you think about it, their argument comes not from the Constitution itself, but rather the interpretations of that document contained in two opinions. Yes, that’s all they are; opinions.

The first proceeds from a 1964 U.S. Supreme Court case known as New York Times Co. v. Sullivan, a legal confrontation between the Montgomery, Ala., Public Safety Commissioner, L.B. Sullivan, and supporters of Dr. Martin Luther King Jr. regarding an advertisement those supporters had taken out in the New York Times. In that advertisement, they published inaccuracies about the actions of the Alabama State Police and how they handled Civil Rights activists.

These inaccuracies included claims that the state police had arrested Dr. King seven times when in fact he was arrested four times. They also reported the wrong song that the demonstrators sang at the steps of the state capitol, and they misreported the reason for the expulsion of nine college students. Sullivan argued that these inaccuracies held him in a false light and were defamatory of him.

Ultimately, the Supreme Court sided with the New York Times. In its ruling, the Supreme Court found that a successful prosecution of the defamation of a public official required that actual malice (so called New York Times malice) be proved. The Court then defined New York Times malice as one where the defendant (the person delivering a statement) displayed a reckless disregard for whether the statement was true or not.

Eliminating any accountability

The effect of this case was to strip any legal liability of what is said regarding a public official. This resulted, of course, in fake news, reckless media frenzies, and the misguided belief that one can say whatever he or she wants about a public official, regardless of how disgusting or personally threatening such an expression may be.

Following that was the opinion of the 1989 case of Texas v. Johnson. Here, the Supreme Court held that the burning of the American flag, the same flag hundreds of thousands of Americans died protecting, was a form of political expression and thus protected under the Constitution.

You now have all the precedents you need to legally make the argument for Griffin in court.

But the Johnson case was by no means unanimous, as it was decided by a 5-4 majority that, oddly, saw the revered conservative Justice Antonin Scalia join Justices Blackmun, White, Kennedy, Marshall, and Brennan in the majority. In his descent Chief Justice Rehnquist reminded us that the flag, as the national symbol, deserved special protections against its desecration while making the point that Johnson’s actions expressed no specific political thought, but rather represented “an inarticulate grunt.”

Fast forward to Kathy Griffin and her terrible video. Doesn’t the President of the United States who, like the flag, represents our nation and is a living, breathing human being, and the ultimate target of our nation’s enemies, deserve the defenses of which Chief Justice Rehnquist speaks?

Time to revisit some precedents

Griffin’s case highlights all the things that have gone awry with the nation, its culture, and its modes of political expression since the creation of New York Times malice precedent.

But like so many things, these degradations are a result of the legislative environment in which we live, which oftentimes comes not from the reasoned (or heated) policy battles waged within the halls of Congress, or in our state capitols. Rather, they are the result of misguided Supreme Court opinions inconsistent with the will of the people regarding the Constitution’s proper interpretation.

No, the First Amendment does not protect Griffin’s inarticulate, vile, and disgusting grunt. She should be held accountable, not merely through the punishments of her employers and of the public, but through our judicial system as well.

In light of all that has happened and continues to happen with the press and the nation’s predictable deterioration in the conduct of its activists and its political commentators, it is time the Supreme Court revisit its misguided decisions. More importantly, it is time for a judicial override amendment (about which I have previously written) to be passed.

Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and serves in the Florida House of Representatives. He can be reached through www.thefederalistpages.com to arrange a lecture or book signing.

I am curious if Dr. Gonzalez accepts the incorporation of the Bill of Rights against the states as the intent of the authors, since this power wasn’t discovered until the 20th century, and Miller v Texas of 1894 clearly saw no such incorporation.

Awe, its just like being back on Constitutional Law 1 class. Representative Gonzalez knows that the First Amendment is written to keep the government at bay and not the citizens. Our founding fathers put together a rule book for what the government can and cannot do, not the people.

Expressio unius est exclusio alterius is a rule of construction, applying both to statute and legal writings, that states that one thing having been mentioned the other is excluded. Which is why words, or lack there of, are very important. We have derived that what was left out of the Constitution is equally as important as what was put in. And to say that our First Amendment rights are determined by just “Opinions” is misleading to the readers. We all must recognize that not all opinions are equal. If I want to have a knee replaced, do I listen to the opinion of my orthopedic surgeon or my neighbor who’s sister had it done four years ago? A Supreme Court opinion gives us not only the understanding of what they were thinking when making the decision, but it is also backed by case law documentation. When we are left with a Per Curiam Affirmed (when no opinion is given), then we are left wondering what to basis this decision was made. It leaves us in the dark and puzzled on the next move. Absolutely nothing can be gained by it. So the Justices opinions are not just opinions, but are extremely important to our legal structure.

Let’s move onto the actual issue of Ms. Griffin’s First Amendment rights. I agree of the photo depicting a vile suggestion. But issues of the First Amendment are only brought up when it’s an unpopular thought. I’m sorry Rep. Gonzalez did not realize the 9 years of equally as vile treatment of former President Obama was worthy of his criticism as well, but that does not mean that we should revisit the arguments of people’s civil rights in America. Texas v. Johnson was a hard case for conservatives to reconcile because the Justices who affirmed the right to burn the American flag as a political speech were the most conservative justices on the bench: Scalia and Kennedy. Scalia often noted that he did not like allowing the desecration of the American flag, but knew that it is the “justices’ job to interpret the Constitution, not to pass moral judgment.”

And that is what Rep. Gonzalez is missing in his argument. Ms. Griffin is not without accountability. The same day that the photograph was published, she lost her job at CNN. She has had to respond to the public outcry over her photo and has had to publicy apologize to everyone. She has done more on that one photo than we ever saw out of Ted Nugent and his suggestion to kill President Obama or former Illinois congressman, Joe Walsh, when he tweeted, “”Watch out Obama. Watch out black lives matter punks. Real America is coming after you.” It’s all vile and disgusting that Americans can’t have a disagreement without suggesting such horrible things as assassinations. But that doesn’t mean that they are not held accountable and it doesn’t mean we need to revisit the Constitution.

Because without the First Amendment, we would be living under a fascist government and I am certain that is not what is being suggested. Right?